EFF sues for publication of FBI domestic surveillance manual

If you wanted to know what guidelines the FBI sets for itself internally to …

The EFF's recent amicus filing in the case of Warshak v. United States got quite a bit of mileage out of a nice quote from the Department of Justice's surveillance manual, which contains language that appears to clearly forbid the kind of "back door wiretap" of the plaintiff's e-mail that got the FBI in hot water with civil liberties groups over the course of this long-running and important case.

Now the EFF appears to be looking to get its hands on a copy of the equivalent manual for the FBI—the agency's Domestic Investigative Operational Guidelines, which details the rules of the road for FBI-run domestic surveillance. The only problem is that its contents are a secret. So, the EFF is filing suit to have the manual's contents released to the public.

"The Attorney General's Guidelines are troubling, allowing for open investigative 'assessments' of any American without factual basis or reasonable suspicion," said EFF Senior Counsel David Sobel in an EFF statement. "The withholding of the Operational Guidelines compounds our concerns. Americans have the right to know the basic surveillance policies used by federal investigators and how their privacy is—or is not—being protected."

But maybe you prefer to trust the DBI to police itself and to follow its own (secret) guidelines for surveillance in a way that respects the constitution. In this case, I point you to Tim Lee's account of the FBI's long-running struggle to stop its rampant, well-documented abuse of the controversial National Security Letters, which act as a sort of subpoena, but without the judge.

Lee quotes the Office of the Inspector General report that brought the whole sorry mess to light in 2007, which describes the FBI not only misused NSLs, but on many occasions didn't even bother with the NSL fig leaf:

On over 700 occasions the FBI obtained telephone billing records or subscriber information from 3 telephone companies without first issuing NSLs or grand jury subpoenas. Instead, the FBI issued so-called "exigent letters" signed by FBI Headquarters Counterterrorism Division personnel who were not authorized to sign NSLs. The letters stated that the records were requested due to "exigent circumstances" and that subpoenas requesting the information had been submitted.

Since the passage of the Patriot Act, the FBI has been busted time and time again for a combination of incompetence, secrecy, and disregard for the rule of law. So let's hope that the EFF can at least get its hands on the document that lays out the agency's own internal rules for domestic surveillance, so that the public can at least have a fighting chance of knowing if the agency follows its own guidelines.